Libyan War Powers - UPDATE

Obama's speech this evening adequately explained the reasons for our involvement in Libya, but failed to answer some key questions and suffers from a defect of logic. But first, we must answer the constitutional questions. Representative Justin Amash (R-MI) summed up eloquently:

“It is astonishing that the administration seems to think a U.N. resolution is required but a declaration from Congress is not required to initiate offensive military strikes. No U.N. resolution and no press release from the Arab League can replace Congress’s authorization,” said Amash. “Major players in the administration used to be forceful and articulate defenders of the Constitution’s constraints on executive war powers. Now that they’re pulling the trigger, they seem to have had a radical change of heart.”

Some have suggested that the President has 60 days before he must go to Congress, but I believe that is only if the action is defensive in nature, protecting the U.S. From the relevant law:

The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

The President has not answered the question of what statutory authority he has to continue the war in Libya. If he argued that under the treaty establishing the U.N. there was a humanitarian duty, then fine. But he did not so argue. He has run away from the discussion. I believe that the Congress should force the issue. Here is the relevant passage from the U.N. Security Council Resolution 1973:

Authorizes Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory, and requests the Member States concerned to inform the Secretary-General immediately of the measures they take pursuant to the authorization conferred by this paragraph which shall be immediately reported to the Security Council;

Now that these civilians are secure, what is the legal basis for continued military strikes? The enforcement of a no-fly zone? Not really, because if there are no flights, then there should be no action. Even if the U.S. has "a supporting role" we are still involved in war making.

The second issue is a defect in logic. He has stated that Gaddafi must go, but in tonight's speech he states:

Of course, there is no question that Libya – and the world – will be better off with Gaddafi out of power. I, along with many other world leaders, have embraced that goal, and will actively pursue it through non-military means. But broadening our military mission to include regime change would be a mistake.

However, the actions on the ground indicate that we are in fact engaging in regime change. Unlike Egypt, where there is a professional military to maintain order and help the transition to democracy, Libya appears headed towards a protracted civil war, with the U.N. and NATO taking the side of the rebels. There is no way to keep those events under control. However, a protracted civil war, in which both sides settle into more fixed areas of control may actually work in our favor, by giving us time to assess the nature of the rebellion.

In fact, the President's actions could all be seen in a more favorable light if he would just ask the Congress for authorization. If the Congress authorized the limited combat role the President outlined, I could even be persuaded to support such a resolution.